Tuesday, May 30, 2006

How does eBay v. MercExchange impact patent reform efforts?

Of the impact of eBay v. MercExchange on patent reform, recall that BusinessWeek said:

And the opinion likely will take the wind out of efforts in Congress to reform a system that's granting patents on processes that are already in wide use or techniques so simplistic that avoiding infringement is nearly impossible.

The Los Angeles Times took a different tact on May 17:

The patent office is second-guessing itself on some MercExchange
patents as well, which points to a fundamental problem that the Supreme Court
didn't address. The system yields too many bad patents, particularly when
business methods are concerned. Proposals that would significantly strengthen
the process have been bottled up in Congress. Now that the Supreme Court has
started fixing the patent morass, lawmakers need to finish the job.

IPBiz notes: the fact that different industries have taken divergent positions on the permanent injunction issue did not change with the Supreme Court's eBay decision. The different industries will still lobby Congress, so it is naive to expect Congress to come down hard, one way or another, on the permanent injunction issue. BusinessWeek has the better sense of the matter, in that the Supreme Court decision may be perceived as having defused the issue, so that there will be LESS PRESSURE on Congress to take a strong position or "to finish the job." The irony of course is that the Supreme Court cut out the legs for the district court's rationale for NOT granting an injunction, so the district court will have a harder time denying the injunction this time around. If the injunction is granted, to a patentee perceived by many to be a troll, then the net effect of this particular case will be to maintain the strong position of patentee as to permanent injunctions. Nevertheless, by throwing out the "grant injunction absent exceptional circumstances" rule, the Supreme Court may have created uncertainty which encourages litigation, even though most outcomes will be the same (injunction granted).

The Observer had written: Patent litigation has become the continuation of
commercial rivalry by other means.

IPBiz adds: Patent reform has become the continuation of commercial rivalry by other means.

IPBiz further adds: Writing amicus briefs to the Supreme Court has become the continuation of commercial rivalry by other means.


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